Apple Loses This Round In Blogger Case

smart2000 writes "A decision has been handed down in O'Grady, et al. v. Superior Court of Santa Clara County, the case commonly referred to as 'Apple vs Bloggers', in previous Slashdot posts. While like any court case it is complex, the short of it is that O'Grady won this round." From the article: "Apple has failed to demonstrate that it cannot identify the sources of the challenged information by means other than compelling petitioners to disclose unpublished information. This fact weighs heavily against disclosure, and on this record is dispositive."

Comments

dispositive?

[Marxist Hacker 42]

Is that anything like double-plus-ungood? Winston Smith, are you in there someplace?

Re:dispositive?

[sedyn]

IANAL but I assume the term is based on this.

Re:dispositive?

[WilliamSChips]

Am I open minded towards open source, or closed minded towards closed source?

Yes.

Re:dispositive?

[Marxist Hacker 42]

Oh, dispos-itive, as in a tendancy to be disposed, as opposed to dis-positive, or negative......

Re:dispositive?

[Jerry Coffin]

Is that anything like double-plus-ungood?

"Dispositive" isn't from "dis-positive". It's from the same root as "disposition", "dispose", etc. What they're saying is that they don't need to send this case back to the lower court for a retrial or anything like that -- they have enough evidence to make a final decision about the case.

Re:dispositive?

[deathy_epl ccs]

What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer...

While legal loopholes most definitely get abused, having all laws be "absolute, black & white, this is the way it is" has a lot of potential to really break down in situations where a little bit of common sense can save the day.

That said, writing the laws more clearly is not a bad thing... just making it a strict logical construct such as Modus Ponens ("if A, then B. B, therefore A") will not work in a real society.

Besides, the shysters out there (which is not all lawyers, but enough of 'em) would find some way to abuse solid logical constructs too. Give a person enough time and motivation, and they'll find an exploit for any given situation.

Re:dispositive?

[Jerry Coffin]

And lawyers wonder why we engineers and mathematicians snigger behind their backs.

Oddly, many of the lawyers I know are engineers. I can see where almost anybody could end up a bit twisted from trying to snigger behind their own back... :-)

What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer....

Experience with programming languages, design specification languages, etc., would tend to indicate that even when everybody wants the communication to be clear, it often isn't. Add in a (sometimes quite strong) motivation to misread, misunderstand, etc., and there's virtually no chance you can prevent all misunderstanding and such.

Don't get me wrong -- I'm certainly not trying to say law-writing isn't open to improvement. At the same time, my own experience has been that a lot of the law is written far more carefully than it's given credit for. There's also quite a bit of room for a bit of judgement in legal matters -- in fact, I'd say some of the worst laws around are those that attempt to be completely binary, and remove all human judgement.

Re:dispositive?

[jthill]

In adversarial games worth playing, public deterministic strategies lose.

Re:dispositive?

[Marxist Hacker 42]

In adversarial games worth playing

Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life.

Re:dispositive?

[The Only Druid]

"Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life."

Life is an adversarial game. It's a zero-sum competition, which means we are all adversaries. The fact that we form alliances in order to better compete with other alliances doesn't change the fact that we are still engaged in an adversarial game.

Re:dispositive?

[jthill]

Perhaps "worth" was the wrong word to use. Games have a mathematical structure. I intended "worth" to refer to situations, whose mathematical structure mathematicians call "games", that have no forced win or draw strategy. Our legal system is adversarial and it follows rules. I was responding to someone's suggestion we get computers to apply those rules to presented cases, in deterministic fashion. The full spelling of my remark is that no deterministic automaton in an this situation can succeed long-term against competent, unpredictable people who choose to "game the system".

Perhaps you'd rather I used the older version of my remark: "eternal vigilance is the price of liberty". I was only trying to keep it light. Sorry.

Cool!

[jargoone]

Does this mean AsSeenOnTV can have his job back?

Ralph Wiggum

[revery]

Me fail grammar? That's dispositive...

--
This is a joke. I am joking. You have been joked with.

IANAL - so I wonder....

[Dark Paladin]

Does this case work then to help establish that bloggers can be considered "press" - and just because a person doesn't work at a corporate or even print newspaper, they are still protected under typical laws and rules the protect journalists? (For whatever that means.)

Re:IANAL - so I wonder....

[Pfhreak]

A lot of people have tried to make this case about whether bloggers are journalists or not, but the judges have always sidestepped that. The first ruling, when the defendants tried to block the case under California's shield laws, was rejected on the grounds that revealing the existance of the Mac Mini and an audio break-out box wasn't whistleblowing, since they weren't reporting on a health risk coverup or bribery or the like, and that these items were trade secrets. The rulings since then have all been that Apple didn't do the appropriate footwork to find out for themselves who was leaking information before going to court. (Companies are supposed to make every effort to find out the source of trade secret leaks by internal means before subpoenaing people: the court system does not exist as a counter-idustrial-espianoge service for lazy companies.)

Can someone translate?

[Ritz_Just_Ritz]

For those of us who aren't parasitic lawyers? :-)

Re:Can someone translate?

[Kamiza Ikioi]

Basically, the court afforded bloggers the same protections under the law that are given to all journalists, including shield laws.

shield law n. A law that protects journalists from being compelled to reveal confidential sources of information. - Answers.com

Re:Can someone translate?

[dgatwood]

No, in this case, they did not rule on that issue in a general case. They ruled that in this specific case, the actions of the bloggers fell soundly within the bounds of journalism. They explicitly refused to set any bounds on what is and is not legitimate journalism, however, and as such this case sets very limited precedent at best.

Essentially, the sum total results of this decision were that someone acting in a journalistic capacity qualifies as a journalist, without further refining the definition thereof. Whoop-de-freaking-doo.

Re:Can someone translate?

[TheViewFromTheGround]

Basically, the court afforded bloggers the same protections under the law that are given to all journalists, including shield laws.

Actually, the court said that they didn't want to rule on what qualifies a person as a "journalist" but would rather focus on the activity. That's a quite sane and reasonable approach.

I'm currently in the midst of a case where the city of Chicago is aggressively pursuing a subpoena of a writer I work with for our online reporting on police misconduct in conjuction with a federal civil rights lawsuit (see The View From The Ground). One of the questions in these cases always centers on whether or not the writer is "really" a journalist. This court sets a useful precedent in arguing that the spirit of shield laws is intended to protect the activity of making and distributing "news" and not "journalists" per se. Of course, there's no federal shield law, so our situation is different.

Following the court's logic in this case, you have to wonder how much "journalism" (as in material that appears in newspapers, magazines, etc) is protected by shield laws.

Apple Computers?

[Kamiza Ikioi]

Oh, now I get it. I was so brand confused. I thought that other Apple company was suing bloggers. Like most people when I think Apple, I instantly think Beatles. ;)

Dead Wrong

[abb3w]

The courts said that bloggers are not journalists...

BZZZT!
Quote from the ruling, via Wired:

"We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis(m).' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here."

Re:Dead Wrong

[Ana10g]

Yea, sorry about that... seems I wasn't quite reading correctly. So, if I may submit a conjecture, doesn't this mean that if you can smuggle a proprietary corporate document out the door, and somehow publish it (using any means available), you are protected under the shield law?

Re:Dead Wrong

[abb3w]

So, if I may submit a conjecture, doesn't this mean that if you can smuggle a proprietary corporate document out the door, and somehow publish it (using any means available), you are protected under the shield law?

IANAL, but my lay guess: If you publish it as a journalist, you might be protected under the shield law from revealing that you are you are your own source... but you wouldn't be protected from having smuggled or stolen the document originally. Presumably, it wouldn't be hard to connect you as your own source. I'm also not sure, but I believe being an accessory may abrogate the privilege, and this ruling I believe is narrowly tailored with respect to civil (as opposed to criminal) cases; ask a real lawyer.

So, short answer: even if you're protected as a journalist, you can still be prosecutable as a crook.

Lay speculation

[abb3w]

IANAL either; I just argue with them about the law. =)

My educated lay guess: First, the ruling is based in part on the California Constitution Journalist Shield, so in CA they are protected as journalists. Other jurisdictions with shield laws/amendments would consider the ruling advisory, not binding, but would probably be influenced by its arguements. In areas without specific shield laws it would again be advisory, and with more limited use due to the more limited protection of the First Amendment alone; I suppose it might give a basis for arguing against prior restraint in publication for a blog. Of course, that would imply someone would come to try and get a court to order prior restraint on a blog, an idea which would probably make most judge judges call for the Advil.

Re:dispositive? Being dispositive is not entirely

[davidsyes]

unpossible...

A weak victory

[nsayer]

The victory actually looks rather weak to me. If Apple had been able to demonstrate that they had no other means by which they could have rooted out the source of the leak, then it would seem the court would not have been able to dismiss this so easily.

Am I missing something?

Re:A weak victory

[flooey]

The victory actually looks rather weak to me. If Apple had been able to demonstrate that they had no other means by which they could have rooted out the source of the leak, then it would seem the court would not have been able to dismiss this so easily.

Am I missing something?

I don't think you're missing anything, but I also don't think that makes the victory weak. First, they didn't say that Apple would necessarily have won if this was their only way of determining the source, only that they couldn't necessarily just dispose of the suit out of hand. Second, I'm having a hard time coming up with a situation where someone wouldn't have another way of determining the source of the leak, so it seems that this would cover the vast majority of cases that will ever occur in reality.

In Cupertino, war was beginning....

[Chas]

SteveJobs: What happen ?

AppleDrone1: Somebody set up us the bomb.

AppleDrone2: We get signal.

SteveJobs: What !

AppleDrone2: Main screen turn on.

SteveJobs: It's you !!

O'Grady: How are you gentlemen !!

O'Grady: All your secret are belong to us.

O'Grady: You are on the way to destruction.

SteveJobs: What you say !!

O'Grady: You have no chance to survive make your time.

O'Grady: Ha Ha Ha Ha ....

AppleDrone2: Steve !! *

SteveJobs: Take off every 'Mac' !!

SteveJobs: You know what you doing.

SteveJobs: Move 'Mac'.

SteveJobs: For great justice.

Very interesting

[wootest]

The whole ruling is interesting reading, but towards the end (page 62 and forward) we find these very interesting lines, which I suppose sum up best why Apple lost the case:

"The publication here bears little resemblance to that in Bunner, which disclosed a sort of meta-secret, the whole purpose of which was to protect the plaintiff's members' products from unauthorized distribution. Here, no proprietary technology was exposed or compromised. There is no suggestion that anything in petitioners' articles could help anyone to build a product competing with Asteroid. Indeed there is no indication that Asteroid embodied any new technology that could be compromised. Apple's own slide stack, as disclosed in sealed declarations which we have examined, included a table comparing Asteroid to existing, competing products; there is no suggestion that it embodies any particular technical innovation, except perhaps in the fact that it would integrate closely with Apple's own home recording software--a feature reflecting less a technical advance than a prerogative of one who markets both hardware and software.

The newsworthiness of petitioners' articles thus resided not in any technical disclosures about the product but in the fact that Apple was planning to release such a product, thereby moving into the market for home recording hardware.

[..]

Publishing a computer manufacturer's proprietary code may thus be compared to publishing a miller's secret recipe for a breakfast cereal. What occurred here was more like publicizing a secret plan to release a new cereal. Such a secret plan may possess the legal attributes of a trade secret; that is a question we are not here required to decide. But it is of a different order than a secret recipe for a product. And more to the point, the fact of its impending release carries a legitimate interest to the public that a recipe is unlikely to possess."

Is it the method that matters?

[riversky]

So this seems to be the method I aquired the information is the issue. I seem to have broken it down like this in simple terms if I am reading things right.

If I sneak into Apple and take pictures, documnet copies etc and post them online I am not protected.

But if I am told or given those documents, pictures, etc. by another person (third party) I am protected. Is this true or am I missing something????

Very little to see, here.

[mstone]

Advocacy to the contrary, this ruling doesn't say much. The two sides are still arranging their pieces on the board, and the major facts of the case are still in play.

This is really just an example of the adversarial legal system in action. Both sides state their ideas in the strongest terms they possibly can, then the other side gets a chance to chip away as much it can.

In the previous round, the bloggers floated the idea that anyone who puts information on the internet is a journalist, and that anyone who posts protected information should receive the same legal protection as a whistleblower. The court didn't buy that, nor should anyone have expected it to. But that's where the defense started, because it would have been the simplest, strongest win they could get. All they really lost was the right to claim blanket immunity from prosectution for anyone, anywhere, under pretty much any circumstances.

Now it's Apple's turn. Apple floated the idea that it should get a free pass for discovery since the information in question was vastly important, and that the bloggers had no possible interest in publishing it. The court didn't buy that, either. Had the bloggers posted the product's schematics, or a discussion of some new, patentable idea that Apple had been working on, the decision probably would have gone the other way.

So as things stand now, the bloggers can't make the case go away on the grounds of blanket immunity, and Apple can't ask the court to fast-track its subpoenas because of the massive-and-ongoing damage it received. Neither of those was really a viable claim in the first place, but that's how the game is played.

The courts still have to rule on whether Apple has done sufficient work trying to find the leak by other means, and the bloggers still have to face questions about whether they knew the information they posted was confidential, and put it online anyway.

And NONE of this has anything to do with the question of "whether bloggers are journalists."